Youngkin’s office holds up changes to Virginia’s outdated migrant labor camp rules

RICHMOND, Va. (WRIC) -- Rules meant to ensure migrant workers live in safe and healthy conditions in Virginia haven’t been thoroughly reviewed in over 20 years – and changes advocates say are vital have been delayed by Gov. Glenn Youngkin’s office for more than a year.

Thousands of migrant workers in Virginia – people who pass seasonally from one place to another for work and play essential roles in the agricultural and fishing industries – live in the hundreds of labor camps across the commonwealth at any given time in a year.

The regulations for Virginia's migrant labor camps, enforced by the state's health department, set standards for general maintenance, water supply requirements and other safety and health guidelines. Changes to the rules were recommended in 2022.

“The regulation, in its current form, does not reflect existing industry standards, changes in technology or safety, and no longer aligns with other regulations that govern food safety and disease prevention,” a 2022 state report found.

Virginia's secretary of health and human resources finished a review of a Notice of Intended Regulatory Action (NOIRA) to change the rules on Aug. 18, 2023, after the state’s Department of Planning and Budget completed its review on Feb. 14, 2023.

But the review by Youngkin’s Office of Regulatory Management, which he created to provide “streamline regulatory management,” is still pending after more than 400 days (424 days as of Oct. 15).

Youngkin’s office did not respond to multiple requests for an interview on the status of the review.

“The NOIRA is under review,” a Virginia Department of Health spokesperson wrote in an Oct. 4 email, adding that once approved it will be published in the Virginia Register of Regulations for public comment, and then proposed amendments to the rules will be brought to the Board of Health for approval.

Marissa Baer, a staff attorney in the Legal Aid Justice Center’s worker justice program, submitted a comment to the state in March 2022 with proposed changes to the rules. Baer wrote then that "Virginia only provides the bare minimum of standards as required under federal law."

“It's certainly disappointing that there hasn't been any sort of movement on this,” Baer told 8News in an Oct. 10 interview.

Manuel Gago, organizing director of the Legal Aid Justice Center’s worker justice program, told 8News he’s seen unlivable conditions at the migrant labor camps he’s visited while leading the center’s organizing and outreach efforts to Virginia farmworkers.

“These are humans,” Gago said in an interview. “Don’t see this work just as a commodity.” 

These workers are often more focused on their financial responsibilities than their living conditions, Gago said, and are too concerned with any potential repercussions to make official complaints about the camps.

Gago said this puts many workers in a difficult spot: “Do I want livable conditions, or I want to have a job?” 

A look at migrant labor camps in Virginia

Virginia’s health department adopts and enforces the rules to ensure safe and healthy living conditions for migrant workers and their families during their time in Virginia.

According to Virginia law, migrant labor camps are one or more structures “reasonably” near each other that are used as living quarters for agricultural or fishing industry workers, including those working in food processing.

The camps can be buildings, tents, barracks, trailers, vehicles, converted buildings or even “unconventional enclosures of living space,” per state law.

The camps are permitted and inspected under the authority of state rules and regulations, with inspections focusing on facilities’ water supply, sewage disposal, housing and garbage pick-up.

Along with meeting Virginia’s rules, migrant labor camps use either the housing standards from the Occupational Safety and Health Administration (OSHA) or the Employment and Training Administration (ETA).

For a business or individual to operate a migrant labor camp in Virginia they must submit a permit application with the state each year.

There are 235 migrant labor camps in Virginia with a total maximum capacity level of 3,446 with active permits, according to state data obtained through a public records request.

A look at Virginia's immigrant workers -- and how they impact the economy

According to the U.S. Department of Agriculture (USDA), most farmworkers hired in the U.S. are immigrants, with many from Mexico and Central America. Many crop farmworkers don’t have documentation allowing them to work in the country, per the U.S. Department of Agriculture.

In 2018–20, per USDA data, 30% of crop farmworkers in the U.S. were born in the country, 6% were immigrants who got citizenship, 23% were other authorized immigrants and the remaining 41% were not authorized to work in the U.S.

Most farmworkers in the U.S. aren’t considered migrant workers, but instead "settled" workers who work within 75 miles of their homes, according to the USDA.

A migrant worker, under state law, is any individual from within or outside Virginia who passes through seasonally for work. The worker isn’t a year-round employee and lives in a migrant labor camp while they work in Virginia’s agricultural or fishing industry.

Many migrant farm workers come to Virginia through the H-2A visa program, which allows U.S. employers or agents to fill temporary agricultural jobs with foreign workers. Job orders show that several employers with migrant labor camps in Virginia have sponsored H-2A workers this year.

The number of H-2A positions has increased over the years, from 48,000 positions certified in fiscal year 2005 to around 371,000 in fiscal year 2022, per the USDA. A vast majority of H-2A workers come from Mexico.

According to USDA data, H-2A-certified positions in fiscal year 2022 lasted under six months. According to the USDA, the 371,000 positions that fiscal year “represented around 175,000 full-year equivalents.”

All of these workers are essential to the agricultural business, which as Virginia’s largest private industry had an economic impact of $82.3 billion annually, provided more than 380,000 jobs and had $43.8 billion in value-added in 2021, according to an economic impact study.

The effort to make changes

Virginia started a periodic review of the rules in February 2022 to see if they should be repealed, changed or kept as is, and recommended that the regulations should be amended after the review was completed, per a state report prepared on March 22, 2022.

“This action, following a periodic review, seeks to amend the regulatory text to ensure an effective regulatory program governing living quarters for migrant agricultural workers within the Commonwealth,” a state report prepared on Nov. 4, 2022, reads. “The Regulations have not undergone a comprehensive review since their promulgation over twenty years ago.”

Per that report, the action would:

• Remove outdated information.
• Add and amend text to reflect best practices and the latest science from industry, academia, public health experts, and other stakeholders.
• Clarify regulatory and enforcement standards.
• Include any additional amendments deemed necessary in response to public comment or input from industry and subject matter experts.

The recommended regulatory change didn’t come through a mandate but instead was prompted by the one public comment from Baer, the attorney for the Legal Aid Justice Center, a VDH staff review and the amount of time that passed since the rules underwent a comprehensive review.

“The current regulations require updates to standards for safe and healthy living conditions such as (i) heating and cooling, (ii) sanitation practices, (iii) prevention and response to communicable disease, (iv) waste disposal, and (v) facility maintenance,” the Nov. 4, 2022, report reads.

“In addition, the regulations are restrictive to new innovations in construction and technology, impeding the modernization and expansion of migrant labor camps; this has the potential to be burdensome on small businesses,” the report continued.

The violations inspectors found over the last 5 years

More than 2,000 inspections have been done at Virginia’s migrant labor camps over the last five years, according to VDH data obtained through a public records request.

An 8News review of thousands of violations dating back to 2019 found camps without heat, no running water, no first aid kits, no toilet paper, no beds or too many beds, mold, exposed wiring, no fire extinguishers or smoke detectors, harmful chemicals next to water supply equipment, areas in disrepair and more.

Gago said he’s seen camps with only portable bathrooms for workers, no air conditioning during hot conditions, spaces improperly used as bedrooms and other issues.

“Imagine, it’s one portable bathroom for 12 people and it only needs to be cleaned once a week,” he told 8News of one camp he’s visited. “So, imagine to share that with 12 people.”

In the last five years, migrant labor camps across Virginia have also had major issues with rodents and pests.

Dozens of inspections from August 2019 to August 2024 found evidence of rodents and pests, including live and dead rats and roaches, droppings in beds, kitchens, and other living areas and a wasp nest over a toilet.

One inspection in 2022 of a migrant labor camp in Grayson, Virginia, found a snakeskin in a bathroom and rodent droppings in several rooms in the home.

Per records reviewed by 8News, inspectors have warned camp operators to repair screens and facilities to make sure insects and rodents are kept out.

One 2023 inspection of a camp that hadn’t opened at the time found the facility didn’t have “bathrooms, a kitchen, or laundry area” and a ceiling that was exposed in some areas.

Looking ahead to potential changes

In 2022, Baer proposed combining the migrant labor housing rules into one regulatory scheme that would apply to all camps equally, increasing the frequency of inspections, adding workers with H-2B non-agricultural labor temporary visas to the regulatory authority, requiring cooling standards and limiting the number of people allowed per bedroom, bathroom and kitchen facilities.

"As of right now, Virginia only provides the bare minimum of standards as required under federal law," Baer wrote in her 2022 recommendations to the state.

"These regulations, based on regulations from the Occupational Health and Safety Administration (OSHA) (for those buildings built post 1980) and the Employment and Training Administration (ETA) (for those buildings built before 1980), do not require that these hardworking individuals live in housing that is as safe and comfortable as the average home," she wrote. "Indeed, migrant housing is often hardly habitable."

Baer said the Legal Aid Justice Center has advocated for migrant farm workers across Virginia for years, working to educate those “who do some of the most backbreaking and thankless work” on their rights.

The effort is “community-centered” and the proposals put forward by Baer were made in response to the conditions the center’s staff have seen and heard about, she told 8News.

While there are minimum heating requirements for these migrant workers, Baer said there’s a lack of heat stress standards in Virginia for them and most of the migrant labor season takes place in the summer.

The workers want AC units, Baer said, adding that “a fan is only going to do so much after you’ve worked” 10 hours in the hot sun.

Baer said creating one regulatory scheme in Virginia for all migrant labor housing rules would help empower workers by teaching them what the standards are and if they are being met. She added that sometimes the regulations are complicated for her to navigate.

One of the main issues facing migrant workers, Baer told 8News, is that “they’re kind of a hidden workforce,” often working in rural, remote places in Virginia.

“The people know that they have food on their tables, but they don't necessarily think of how it gets there,” Baer said.